Evans v. Southern Wheel Co.

• Decision Date: 05 May 1925
• Docket Number: No. 19006.,19006.
• Citation: 273 S.W. 749
• Parties: EVANS v. SOUTHERN WHEEL CO.
• Court: Missouri Court of Appeals

273 S.W. 749

EVANS v. SOUTHERN WHEEL CO.

No. 19006.

St. Louis Court of Appeals. Missouri.

May 5, 1925.

Rehearing Denied June 24, 1925.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by John Evans against the Southern Wheel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

DAVIS, C.

This is an action for negligently causing injury to plaintiff while engaged in performing work known as locking wheels. The jury returned a verdict for $2,041.65 in favor of plaintiff, and from the judgment entered thereon defendant appealed.

Plaintiff's evidence tends to show that at Spring avenue and Market street, in the city of St. Louis, defendant was operating a plant for the manufacture of metal wheels for railroad cars; that plaintiff was injured while in the employ of defendant on February 8, 1923; that a little over two weeks previous thereto plaintiff sought employment from defendant, asking General Foreman O'Connor for work, who inquired of plaintiff whether he knew anything about rolling wheels; that plaintiff answered, "No," and O'Connor said, "I will find something for you to do"; that O'Connor then took plaintiff to defendant's employee named Crook, who was a wheel roller, his duties consisting in rolling wheels, and to whom O'Connor gave plaintiff as a sandman to keep the tracks clean, swept, and in repair for the wheel rollers; that O'Connor told plaintiff that Crook and one Charles Payton, also a wheel roller in the employ of defendant, had charge of the men loading in the yard, and that plaintiff and others were to do what they (Crook and Payton) told them to do; that during the time plaintiff was performing his work, other wheel rollers, than Crook and Payton, were about performing their duties; that Crook and Payton assumed and were in charge of the employees thereabouts directing them in their work, and plaintiff had never seen wheel rollers other than Crook and Payton directing men or making wheel locks; that on February 8, 1923, the day plaintiff was injured, Payton called him and said, "Come here and help me make a lock"; that plaintiff obeyed, and Payton brought a wheel and stood it up, plaintiff asking him where he (Payton) wanted him to stand, Payton replying, "Stand here and take hold of this wheel (weighing about 750 pounds) and hold it," plaintiff so doing; that the flat sides of the wheel faced north and south, Payton intending to build what was known as a row of wheels extending north; that Payton ordered plaintiff to stand on the north side of the wheel, which wheel rested on the ground, which plaintiff said was not solid, but soft, plaintiff holding and balancing the wheel; that a wheel lock is made by two wheels resting against each other at an angle, and it was Payton's purpose to make a wheel lock; that after Payton rolled the first wheel to position and gave it to plaintiff to hold, he then rolled the second wheel to position to the south of the first wheel. Payton taking his position to the south of the wheels, with plaintiff standing in position to the north of the wheels; that in order to make the wheel lock for a row of wheels extending north, it was necessary for the man in charge of the south wheel to first lean it in order that the south wheel might catch under the flange of the north wheel; that Payton then said to plaintiff, "Now lean yours," and before plaintiff could sufficient lean his wheel, the wheel leaned by Payton struck the wheel plaintiff was starting to lean, knocking it over toward and on plaintiff, and it was of so great weight that plaintiff could not hold it; that the wheel just dragged plaintiff down, crushing the bone of his leg, tearing the flesh, and seriously injuring him.

Plaintiff further testified that during the two weeks of his employment he had once before made a wheel lock with foreman Crook, but had had no other experience in locking wheels; `that Crook also made the wheel lock, purposing to extend a row of wheels to the north; that Crook, in making the lock with plaintiff as helper, had plaintiff stand to the south side of the wheels, rolling first a wheel to position, which plaintiff held, and then rolling a second wheel to position, Crook standing to the north side and plaintiff to the south side of the wheels; that Crook told plaintiff to lean the wheel, but the lock was made perfectly, with the edge of the wheel leaned by plaintiff going under the flange of the wheel leaned by Crook, that is, the south wheel held by plaintiff was leaned first, going under the flange of the wheel to the north leaned subsequently.

The following questions and answers appear in the record:

"Q. Now, if your wheel, at the time you made it with Payton, had come over faster than his came, then it would have knocked over on him, wouldn't it? A. No; his rim then caught, see; it could not go back that way. "Q. How is that? A. It wouldn't have went back that away, because the wheel on the south side would have caught this flange here and couldn't go back south; it would go this way."

That when he made the lock with Crook, with plaintiff standing on the south side, plaintiff's wheel went in the rim of Crook's wheel. That plaintiff had never seen a wheel fall before, and did not know that they would fall. That if he had known it he would not have stood on the north side. That he did not know there was any danger in it at all That he knew that if anything was standing straight and something fell against it it would knock it down, but that he did not know there was any danger of the wheel being knocked over on him while he was trying to lean his wheel.

Defendant's testimony tended to show that Payton was a wheel roller and nothing more, without authority to issue orders to plaintiff or to any other employee; that it took several months for a man to make a wheel roller, but it took no experience to make a wheel lock; that any laborer was competent to assist in making a wheel lock; that Payton before leaning his wheel said, "lean," to plaintiff, and then Payton let his wheel lean faster than plaintiff did, and as a result the wheel collapsed.

Such further facts, if any, as we deem pertinent, will later appear.

I. Defendant assigns as error the refusal of the trial court to direct a verdict in its behalf. Four reasons for the assignment are urged: (a) The record is wanting evidence that the wheels could be propped while the lock was being made; (b) the allegation of inexperience in the petition furnished no basis of recovery, and, moreover, evidence of plaintiff's inexperience was wanting; (c) in making the wheel lock Payton and plaintiff were fellow servants; (d) the record is wanting evidence that plaintiff was required to work on the wrong side of the wheels while the lock was being made.

We revert to the four specifications in the above order:

[] (a) While the petition alleged the negligent failure to prop the wheels, we agree with defendant that the record is void of evidence tending to show that the wheels could have been propped while the wheel lock was being made. Although so alleged, the proposition was not vital to plaintiff's cause. Plaintiff abandoned such contention in submitting his cause to the jury, and an issue to that effect was not involved. We do not see how error can be predicated on the contention.

(b) We think the allegation of inexperience and ignorance, taken in connection with other allegations in the petition, furnished a basis of recovery. The petition alleges that plaintiff was negligently directed to work, was placed at work on the wrong, unsafe, and dangerous side of the wheel, and was inexperienced and ignorant of the unsafe and dangerous condition of the work....